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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator Thomas J. Erbs filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Regulations. The Agency filed an opposition to the Union's
exceptions.

The Arbitrator denied a grievance seeking backpay for the Agency's
alleged delay in the reclassification of the grievants' positions. We conclude
that the Union has failed to establish that the award is deficient.
Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The seven grievants occupied GS-5 cartographic clerk positions that
were assigned to the Mapping and Charting Department, Product Services Division
Acquisition and Service Branch. In July 1993, upon the grievants' request, the
Agency conducted a position audit of the positions they occupied. The results
of that audit established that the GS-5 cartographic clerk positions qualified
for reclassification as GS-6 library technician positions. After eleven months
had elapsed, the Union became aware of the results of the position audit, and
filed a grievance seeking to force the reclassification of the seven positions
and backpay. The Union alleged, among other things, that the Agency violated
DMA Instruction 1414.1, which pertains to position reclassifications, and
Article 34 of the parties' collective bargaining agreement, which pertains to
employee details and temporary promotions, by failing to reclassify the
grievants' positions. The Union also alleged that the Agency's conduct resulted
in defacto temporary promotions of the grievants. While the
grievance was pending, the Agency "prospectively" reclassified the grievants'
positions to GS-6 library technician positions, effective September 1994. Award
at 8. However, the Agency denied the Union's request for backpay on the ground
that backpay is not available as a remedy for a classification grievance. When
the grievance was not resolved, it was submitted to arbitration.

By agreement of the parties, a bifurcated arbitration process was
established to resolve the dispute and the Arbitrator issued two awards. In a
preliminary award, the Arbitrator ruled that the grievance was arbitrable, and,
in this connection, stated the following:

It may well be that the Union's case on the merits will end up
confirming the Employer's claim that the Union has really sought
reclassification from the outset and only argued a temporary promotion as a
subterfuge to claim back pay in a situation in which it is not warranted. Or it
may be that the Union has enough evidence, beyond what has been presented, to
carry its burden of proof that it is a bona fide temporary promotion issue as
to the back pay.

Exceptions, Enclosure 5 at 16. The parties did not file exceptions to
the finding of arbitrability.

In the second award, the Arbitrator noted that the parties had not
submitted the issues for arbitration, and framed the issue before him as
follows:

Are the Grievants entitled to back pay for the period from July 1993
to September 1994 under the facts and circumstances of the instant case? And if
so, what is the appropriate remedy?

Award at 16-17.

The Arbitrator stated that the "Union must establish that a de facto
temporary promotion occurred on facts apart from its proof establishing the
Grievants' right to permanent reclassification." Id. at 19. The
Arbitrator posited that if he were a judge, rather than an arbitrator, the
Agency's admission that employees deserved a promotion, along with proof that
the employees had in fact performed work that justified a promotion, might give
rise to an equitable remedy. He pointed out that, in contrast, his authority as
an arbitrator derives solely from "the contractual and statutory scheme[.]"
Id. at 18.

The Arbitrator cited testimony by the grievants at the arbitration
hearing disputing the grade level of the duties that had been assigned to their
GS-5 cartographic clerk positions and requesting backpay for an alleged delay
in the reclassification of those positions. He found, based on that testimony,
that the grievance sought the reclassification of the grievants' positions, and
that the record testimony failed to establish "all elements of a temporary
promotion." Id. at 19. He stated that the "temporary promotion
theory" on which the Union relied was "nothing more than a claim of retroactive
reclassification by another name." Id. Thus, he concluded that the
grievance concerned a classification matter that was precluded by section
7121(c)(5) of the Statute and that he was "without authority to award the
relief sought." Id. at 20. Accordingly, he denied the
grievance.

III. Positions of the Parties

A. Union's Contentions

The Union contends that the Arbitrator was precluded from addressing
the classification issue by his determination in the preliminary award that the
grievance concerned only a temporary promotion matter. The Union adds that the
classification issue was rendered moot because the Agency reclassified the
grievants' positions while the grievance was pending. In support, the Union
cites U.S. Department of the Army, Fort Polk, Louisiana and National
Association of Government Employees, Local R5-168, 44 FLRA 1548 (1992)
and U.S. Department of the Air Force, Warner Robins Air Force Logistics
Center, Robins Air Force Base, Georgia and American Federation of Government
Employees, Local 987, 37 FLRA 155 (1990).

Further, the Union contends that the grievants were seeking, under
Agency regulation DMA Instruction 1407.1, backpay for a temporary promotion and
that the Arbitrator erred, in violation of that regulation, by concluding that
the grievance concerned a classification matter within the meaning of section
7121(c)(5) of the Statute. The Union asserts that DMA Instruction 1407.1
prohibits the Agency from assigning "higher graded" work prior to the temporary
promotion of an employee.(1) Exceptions at 7-8, 12. According to the Union, the
Arbitrator erred in stating that the Union has the burden to demonstrate that
the grievants received defacto temporary promotions on facts
that are different from those that would establish the grievants' right to
reclassification of their positions. The Union adds that the Arbitrator's
statements relating to judicial proceedings improperly required the Union to
establish proof of an admission by the Agency that the grievants had performed
higher-graded duties and proof that those promoted had been performing the same
work prior to promotion.

Furthermore, the Union contends that the Arbitrator's finding that the
grievance sought the reclassification of the grievants' positions was based on
testimony by the grievants that was "not material." Id. at 9. The Union
asserts that other testimony by the grievants and the wording of the grievance
established that the grievance concerned a temporary promotion matter.

B. Agency's Opposition

The Agency maintains that the Arbitrator was not precluded from
addressing the classification issue by his arbitrability determination or
because that issue became moot. The Agency states that "[t]here is no shared
nucleus of facts" between a temporary promotion action and a reclassification
action. Opposition at 17. Further, the Agency contends that the Arbitrator did
not err in concluding that the grievance concerned a classification matter. In
addition, the Agency asserts that the Union's reliance on DMA Instruction
1407.1 is misplaced. The Agency argues that this regulation, and the parties'
collective bargaining agreement, provide for a temporary promotion only when an
employee is detailed to a different position.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority by Addressing an
Issue Not Submitted to Arbitration or an Issue That Was Moot

We construe the Union's claim that the award is deficient because the
Arbitrator was precluded from addressing the classification issue as a
contention that the Arbitrator exceeded his authority.

Arbitrators exceed their authority when they fail to resolve an issue
submitted to arbitration, resolve an issue not submitted to arbitration,
disregard specific limitations on their authority or award relief to those not
encompassed within the grievance. American Federation of Government
Employees, Local 1617 and U.S. Department of the Air Force, San Antonio
Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647
(1996). It is well established that, in the absence of a stipulated issue, an
arbitrator's formulation of the issues is accorded substantial deference.
SeeAmerican Federation of Government Employees, Local 916 and
Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47
(1995) (Defense Distribution Depot).

The Union has failed to establish that the Arbitrator addressed an
issue not before him when he concluded that the grievance concerned a
classification matter. There is no evidence to support the Union's claim that
the Arbitrator found in his arbitrability determination that the grievance
concerned solely a temporary promotion matter. Indeed, he expressly stated that
the case on the merits might "end up confirming the Employer's claim that the
Union has really sought reclassification from the outset and only argued a
temporary promotion as a subterfuge to claim back pay in a situation in which
it is not warranted." Exceptions, Enclosure 5 at 16.

We also reject the Union's contention that the reclassification of the
grievants' positions while the grievance was pending rendered the
classification issue moot and, therefore, that the issue was not before the
Arbitrator. As the reclassification of the grievants' positions was
prospective in nature, there is no basis on which to conclude that it
affected whether the grievants were entitled to retroactive temporary
promotions. Moreover, the Agency disputed the grievants' entitlement to backpay
on the ground that it was not available as a remedy for a grievance involving
classification. Thus, in order to determine whether the grievants were entitled
to backpay, the Arbitrator was required to resolve whether the grievance
concerned the classification of their positions within the meaning of section
7121(c)(5) of the Statute. Therefore, the Arbitrator did not exceed his
authority by considering the classification issue. E.g., Defense
Distribution Depot, 50 FLRA at 247 (Authority rejected exception that
the arbitrator exceeded his authority by addressing an issue that had been
rendered moot). In this regard, we note that the Authority decisions on which
the Union relies are not applicable to this case as they do not address an
arbitrator's authority or the mootness of an issue raised in a grievance.
Accordingly, we deny this exception.

B. The Award Is Not Contrary to Agency Regulations

Section 7122(a)(1) of the Statute provides that an arbitration award
will be found deficient if it conflicts with any rule or regulation. For
purposes of 7122(a)(1), the Authority has defined rule or regulation to include
both Government-wide and governing agency rules and regulations. U.S.
Department of the Army, Fort Campbell District, Third Region, Fort Campbell,
Kentucky and American Federation of Government Employees, Local 2022, 37
FLRA 186, 195 (1990). In circumstances where a party's exceptions involve an
award's consistency with law, rule, or regulation, we must review the questions
of law raised by the arbitrator's award and the party's exceptions denovo. National Treasury Employees Union, Chapter 24 and U.S.
Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332
(1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C.
Cir. 1994)).

The Union's assertion that DMA Instruction 1407.1 prohibits the Agency
from assigning higher-graded work prior to a temporary promotion is misplaced.
The portion of the regulation relied on by the Union does not compel a
temporary promotion when an employee is assigned higher-graded duties.
See note 1, supra. Instead, it concerns the requisite notice for
employees when they are assigned such duties. Further, DMA Instruction 1407.1-1
makes it clear that DMA Instruction 1407.1 applies only when an employee is
detailed to a "different" position.(2) As found by the
Arbitrator, the grievants disputed the grade level of the duties that had been
assigned to the GS-5 cartographic clerk positions that they already occupied.
Thus, we conclude that the Union's exception does not provide a basis for
finding the award deficient under section 7122(a)(1) of the Statute, as
inconsistent with an agency regulation. Accordingly, we deny this exception.

C. The Arbitrator Did Not Impose an Improper Burden of Proof on the
Union

We reject the Union's contention that the award is deficient on the
ground that the Arbitrator erred in stating that the Union had the burden to
demonstrate that the grievants received defacto temporary
promotions on facts that were different from those that would have established
the grievants' right to reclassification of their positions. If a standard of
proof is set forth in law, rule, regulation, or a collective bargaining
agreement, an arbitrator's failure to apply the prescribed standard will
constitute a basis for finding the award deficient as contrary to law, rule,
regulation, or as failing to draw its essence from the agreement. American
Federation of Government Employees, Local 2250 and U.S. Department of Veterans
Affairs, Medical Center, Muskogee, Oklahoma, 52 FLRA 320, 323-24 (1996).
However, in the absence of a specified standard of proof, arbitrators have the
authority to establish whatever standard they consider appropriate, and the
Authority will not find an award deficient because a party claims that an
incorrect standard was used. Id. at 324. Moreover, unless otherwise
provided, establishing the standard encompasses specifying which party has the
burden of proof under the established standard. Id.

In this case, the Union has failed to demonstrate that the Arbitrator
was required to apply a prescribed standard. Therefore, in the absence of any
established burden of proof, there is no basis to conclude that the Arbitrator
erred by stating that the burden was on the Union to prove that the grievants
had received defacto temporary promotions. Furthermore, insofar
as the Arbitrator's statements could be read to concern the Union's burden of
proof in judicial proceedings, those statements were clearly dicta and could
not provide a basis on which to find the award deficient. E.g.,
American Federation of Government Employees, Local 1668 and U.S. Department
of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 51 FLRA 714,
719 (1995) (comments or dicta are statements separate from the award and
exceptions thereto provide no basis for finding an award deficient).
Accordingly, we deny this exception.

D. The Arbitrator Did Not Err in His Evaluation of the
Evidence

The Union claims that the Arbitrator disregarded certain testimony that
supported its position and drew conclusions that do not comport with the
evidence. However, disagreement with an arbitrator's evaluation of the evidence
and his determination of the weight to be accorded such evidence provides no
basis for finding an award deficient. E.g., U.S. Department of
Veterans Affairs, Regional Office, Boston, Massachusetts and American
Federation of Government Employees, Local 2772, 51 FLRA 1769, 1774 (1996)
(citing American Federation of Government Employees, Local 3295 and U.S.
Department of the Treasury, Office of Thrift Supervision, Washington, D.C.,
51 FLRA 27, 32 (1995)). Accordingly, we deny this exception.

V. Decision

The Union's exceptions are denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Section 7d(4) of DMA Instruction
1407.1 provides that the Agency's Personnel Officers shall "[e]nsure that
employees are not assigned higher level duties until notified of the effective
date by the personnel office." Exceptions at 12 n.8, Enclosure 4 at 3-4.

Purpose. The purpose of this instruction is to update the
Defense Mapping Agency (DMA) policy and procedures for the temporary assignment
of civilian employees to different positions for specified periods with return
to their regular duties at the end of the specific period.